1. Whether charges are multiplicitous is a question of law over which this court has
unlimited review.

2. The crime of aggravated indecent liberties is not necessarily proved if the elements of
rape are proved.

3. Charges are not multiplicitous when the offenses occur at different times and in
different places.

4. After a trial court establishes that a jury was presented with evidence of multiple acts,
the case is reviewed using a two-step analysis. The first step is to determine whether
there is a possibility of jury confusion from the record or if evidence showed either
legally or factually separate incidents. Incidents are legally separate when the
defendant presents different defenses to separate sets of facts, or when the court's
instructions are ambiguous, but tend to shift the legal theory from a single incident to
two separate incidents. Incidents are factually separate when independent criminal
acts have occurred at different times or when a subsequent criminal act is motivated by
"a fresh impulse." When jury confusion is not shown under the first step, the second
step is to apply harmless error analysis to determine if the error was harmless beyond
a reasonable doubt with respect to all acts.

5. When sufficiency of the evidence is challenged, the standard of review on appeal is
whether, after review of all the evidence, viewed in the light most favorable to the
prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt.

6. When a verdict is challenged for insufficiency of evidence or as being contrary to the
evidence, it is not the function of the appellate court to weigh the evidence or pass on
the credibility of the witnesses.

The State charged Hill with rape, aggravated indecent liberties with a child, and
aggravated indecent solicitation of a child based on the events of May 18, 1998. The facts of
the case will be revealed only as is necessary for the discussion of the issues of the case.

At trial, B.M. (d.o.b. 9-21-84) testified that she returned home after a friend's
graduation, watched television, and prepared for bed. Hill, who was a friend of B.M.'s father,
called the house and was informed B.M.'s father was not at home. Hill entered the home,
found B.M. in the bathroom, and said, "Hey, I'm here." He kissed her on the mouth with his
tongue. Hill lifted up her sports bra and put his hands down inside her pants and underwear
from behind. One finger penetrated B.M.'s vagina. This was repeated from the front. B.M.
repeatedly told Hill to stop and go home because her father would be home soon. B.M. was
able to push Hill back into the bathtub.

Hill got up, went behind B.M., and kissed her again. He lifted up her sports bra and
kissed her chest. B.M. reiterated that her father would be home soon and walked out of the
bathroom. Hill followed B.M. into the kitchen and asked her "where are we going to get it
on" and started kissing and touching her breasts and inserted his finger into her vagina again.
B.M. went to the living room, where Hill tried to push her on the couch. She repeated her
father was going to be home soon. He kissed her and sat down on the couch. B.M. walked
to the bathroom, and Hill agreed he had to leave and left the house.

B.M.'s cross-examination revealed inconsistencies between her testimony regarding
what may have taken place in the kitchen and her prior statements to the police. Her
statements did not mention any penetration had taken place in the kitchen.

The jury found Hill guilty of all charges.

Hill claims the charges of rape and aggravated indecent liberties with a child are
multiplicitous because the elements are the same and the charged offenses arose out of a single
continuous act. Whether charges are multiplicitous is a question of law over which this court
has unlimited review. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998).

K.S.A. 21-3107 allows charging a defendant with multiple violations arising from a
single transaction when the same conduct may establish the commission of more than one
crime.

"The test concerning whether a single transaction may constitute two separate and
distinct
offenses is whether the same evidence is required to sustain each charge. If not, the fact that both
charges relate to and grow out of the same transaction does not preclude convictions and
sentences for
both charges. [Citation omitted.] Multiplicity does not depend upon whether the facts proved at
trial
are actually used to support conviction of both offenses charged; rather, it turns upon whether the
elements of proof necessary to prove one crime are also necessary to prove the other. [Citation
omitted.]" 266 Kan. at 256.

Rape, as charged herein, is sexual intercourse with a child who is under 14 years of age.
K.S.A. 21-3502(a)(2). Based on the evidence, the jury was required to find that at the time of
the offense, the child was under 14 years of age, and sexual intercourse took place on May 18,
1998, in Osage County, Kansas. Sexual intercourse is defined as "any penetration of the
female sex organ by a finger, the male sex organ or any object. Any penetration, however
slight, is sufficient to constitute sexual intercourse." K.S.A. 21-3501(1).

In contrast, aggravated indecent liberties with a child is engaging with a child who is
under 14 years of age in any lewd fondling or touching of the person of either the child or the
offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of
either the child or the offender, or both. K.S.A. 21-3504(a)(3)(A). Based on the evidence, the
jury was required to find (1) the defendant lewdly fondled or touched a person; (2) the person
touched was a child; (3) the defendant touched with the intent of arousing or satisfying the
sexual desires of the child, himself, or both; (4) the child was at the time of the offense, under
14 years of age; and (5) the offenses occurred on May 18, 1998, in Osage County, Kansas.

The elements of aggravated indecent liberties are not necessarily proved if the elements
of rape are proved. State v. Belcher, 269 Kan. 2, 4 P.3d 1137 (2000). Moreover,
charges are not
multiplicitous when the offenses occur at different times and in different places. State v.
Long,
26 Kan. App. 2d 644, 645, 993 P.2d 1237 (1999), rev. denied 268 Kan. ___ (2000).
According
to Long, since the offenses in the present case took place in the bathroom and in the
kitchen,
they are not multiplicitous. As a result, Hill's argument fails.

Next, Hill contends that the trial court erred in failing to instruct the jury that its
verdict must be unanimous as to which of the two acts of digital penetration constituted the
crime of rape.

Other jurisdictions apply a version of harmless error analysis whereby reversal is not
automatic. In those jurisdictions, there is a common theme concerning potential juror
confusion and resolving the issue of whether the acts were legally and factually separate
incidents.

Several federal courts of appeal, for example, have held that a general unanimity
instruction will not suffice where there exists a genuine possibility of juror confusion.
United
States v. Sayan, 968 F.2d 55, 65 (D.C. Cir. 1992) (specific unanimity instruction required
"when there is a genuine risk of juror confusion or of conviction resulting from different
jurors concluding the defendant committed different acts"); United States v. Schiff,
801 F.2d
108, 114-115 (2d Cir. 1986), cert. denied 480 U.S. 945 (1987) (general unanimity
instruction
sufficient to ensure unanimous verdict unless "complexity of the evidence or other factors
create a genuine danger of jury confusion"); United States v. Jackson, 879 F.2d 85,
89 (3d Cir.
1989) (specific unanimity instruction not necessary where evidence not complex); United
States v. Horton, 921 F.2d 540, 546 (4th Cir. 1990) (specific unanimity instruction not
necessary where danger of jury confusion minimal and evidence not complex); United States
v. Sanderson, 966 F.2d 184, 187 (6th Cir. 1992) (specific unanimity instruction not
necessary
unless a count is extremely complex, there is variance between the indictment and the proof
at trial, or there is a tangible risk of jury confusion); United States v. Montanye, 962
F.2d 1332,
1341 (8th Cir.); United States v. Gilley, 836 F.2d 1206, 1211 (9th Cir. 1988)
(specific unanimity
instruction required where case involved sufficiently complex set of facts); United States v.
Hager, 969 F.2d 883, 891 (10th Cir.), cert. denied 506 U.S. 904 (1992)
(general unanimity
instruction sufficient where evidence "not so complex that there was a genuine possibility of
juror confusion").

The District of Columbia Court of Appeals provides useful definitions to legally
separate and factually separate incidents. Incidents are legally separate when "the appellant
presents different defenses to separate sets of facts, or when the court's instructions are
ambiguous, but tend to shift the legal theory from a single incident to two separate
incidents." Simms v. U.S., 634 A.2d 442, 445 (D.C. 1993) (citing Gray v.
United States, 544
A.2d 1255, 1257 (D.C. 1988). Incidents are "factually separate when independent criminal
acts have occurred at different times, or when a subsequent criminal act is motivated by 'a
fresh impulse.'" Simms, 634 A.2d at 445.

The District of Columbia, New Mexico, and New Hampshire hold the requirement
for a special unanimity instruction arises when the court cannot deduce from the record
whether the jury must have agreed upon one particular set of facts. See Horton v.
U.S., 541
A.2d 604, 611 (D.C. App. 1988); State v. Smith, ___ N.H. ___, 736 A.2d 1236
(N.H. 1999) (no
genuine possibility of juror confusion as to culpable act); State v. Dobbs, 100 N.M.
60, 665
P.2d 1151 (1983) (declining to speculate about possible nonunanimous jury verdict in absence
of confusion). Moreover, for the instruction to apply in D.C., evidence must show either
legally or factually separate events. Simms v. U.S., 634 A.2d at 445.

The Michigan Supreme Court held that when evidence of multiple acts are presented,
the trial court is required to instruct the jury that it must unanimously agree on the same
specific act if the acts are materially distinct or if there is reason to believe the jurors
may be
confused or disagree about the factual basis of the defendant's guilt. People v.
Cooks, 446 Mich.
503, 530, 521 N.W.2d 275 (1994). In Cooks, the defendant was charged with one
count of
first-degree criminal sexual conduct, but the victim's testimony at trial referred to three
incidents of sexual penetration. The Cooks court affirmed the conviction because the
alleged
acts were materially identical.

The Wisconsin Supreme Court held that where crimes are conceptually similar, a
unanimity instruction is not required. State v. Lomagro, 113 Wis. 2d 582, 592-93,
335 N.W.2d
583 (1983). Lomagro was charged with one count of sexual assault but testimony of the
victim indicated six acts of sexual intercourse which included penis-vagina intercourse and
fellatio. The Wisconsin Supreme Court noted in its opinion that the Wisconsin Legislature
had previously determined these acts to be conceptually similar. Although the court found
the six acts to be one continuous event, it concluded the jury did not have to be unanimous as
to which specific act the defendant committed in order to convict because the acts were
conceptually similar. 113 Wis. 2d at 595.

In Washington, the Supreme Court held that where a trial court fails to instruct the
jury that all jurors must agree on a single act which formed the basis of a conviction,
constitutional error occurs that would not be deemed harmless unless no rational trier of fact
could have had or entertained a reasonable doubt that each incident supported conviction.
State v. Kitchen, 110 Wash. 2d 403, 756 P.2d 105 (1988).

In Alabama, where only generic evidence on a series of acts was introduced, the
absence of a specific unanimity instruction was deemed harmless error. R.L.G., Jr. v.
State,
712 So. 2d 348, 368 (Ala. Crim. App. 1997). In R.L.G., the evidence showed a
continuing
pattern of sexual abuse of young children without identifying any separate and distinct
incidents of abuse. Recognizing the problem with strict election in cases involving child
molestation, the court modified the "either/or rule" (either elect the act, or there must be jury
unanimity to all acts) in cases where there is only generic evidence. In R.A.S. v.
State, 718 So.
2d 117 (Ala. 1998), the Alabama Supreme court expanded the rule in R.L.G. to
include cases
with evidence of specific acts.

In State v. Scherzer, 301 N.J. Super. 363, 478-479, 694 A.2d 196 (1997),
evidence showed
four different acts of sexual penetration but only two counts were charged. Although the
jury was not instructed with a specific unanimity instruction, the court found acts of sexual
penetration involving a bat, broom, stick, the defendant's fingers, and fellatio conceptually
similar enough not to require a specific unanimity instruction. The court noted no evidence
of jury confusion capable of producing an unjust result. 301 N.J. Super. at 480.

The Barber holding was due in part to Sullivan v. Louisiana, 508
U.S. 275. The facts in
Sullivan make it distinguishable from the facts in our present case. In
Sullivan, the trial court
gave a constitutionally defective jury instruction on "reasonable doubt." A very similar
instruction previously had been held to violate the defendant's Fifth and Sixth Amendment
rights to have the charged offense proved beyond a reasonable doubt in Cage v.
Louisiana, 498
U.S. 39, 112 L.Ed. 2d 339, 111 S. Ct. 328 (1990). The Sullivan court concluded the
error was
not subject to harmless error analysis because it "vitiates all the jury's findings" and
produces
"consequences that are necessarily unquantifiable and indeterminate." (Emphasis added.) 508
U.S. at 281-82.

We find the authority applying harmless error to be persuasive and adopt the
following test that effectively balances the tension between the defendant's right to a
unanimous jury verdict and judicial economy.

After the court establishes the jury was presented with evidence of multiple acts, the
first step is to determine whether there is a possibility of jury confusion from the record or if
evidence showed either legally or factually separate incidents. Incidents are legally separate
when the appellant presents different defenses to separate sets of facts or when the court's
instructions are ambiguous but tend to shift the legal theory from a single incident to separate
incidents. Incidents are factually separate when independent criminal acts have occurred at
different times or when a subsequent criminal act is motivated by "a fresh impulse." Simms
v.
U.S., 634 A.2d at 445-46.

When jury confusion is not shown under the first step of the above analysis, the
second step is to apply a harmless error analysis to determine if the error was harmless
beyond a reasonable doubt with respect to all acts.

In applying this analysis to the present case, the record contains the following
evidence: Hill digitally penetrated B.M.'s vagina in the bathroom. B.M. repeatedly told him
to stop and managed to push Hill into the tub. After she walked out of the bathroom and
into the kitchen, Hill followed her and again inserted his finger into her vagina. At trial, Hill
did not testify but generally denied penetrating B.M. According to the above definitions,
these events are not legally or factually separate incidents and survive the first step in ensuring
no possibility of jury confusion.

In applying a harmless error review, since there was no extrinsic evidence to support
the charges, the sole issue was the credibility of the victim's account of the two alleged
penetrations. The evidence in its entirety offered absolutely no possibility of jury
disagreement regarding the appellant's commission of any of these acts. By the jury's
rejection of the appellant's general denial, the court could unequivocally say there was no
rational basis by which the jury could have found that the defendant committed one of the
incidents but did not commit the other, and, therefore, the trial court's error was harmless
beyond a reasonable doubt.

This holding should not be interpreted to give prosecutors carte blanche to rely on
harmless error review, and it is strongly encouraged that prosecutors elect a specific act or the
trial court issue a specific unanimity instruction. In many cases involving several acts, the
requirement that an appellate court conclude beyond a reasonable doubt as to all acts will not
be found harmless.

It should be acknowledged that a prior Kansas Supreme Court case leaves open the
possible interpretation that in multiple acts cases a general unanimity instruction followed by
polling the jury is an effective cure to the lack of a specific unanimity instruction. See State
v.
Smith, 268 Kan. 222, 230, 993 P.2d 1213 (1999). Polling the jury is insufficient to cure a
multiple acts problem unless the jurors are polled specifically to their agreement on the same
incident.

Next, Hill challenges the sufficiency of the evidence. Our standard of review is as
follows:

"'When the sufficiency of the evidence is challenged, the standard of review on
appeal is
whether, after review of all the evidence, viewed in the light most favorable to the prosecution,
the
appellate court is convinced that a rational factfinder could have found the defendant guilty
beyond a
reasonable doubt.' State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003
(1990)." State v. Evans, 251
Kan. 132, 135-36, 834 P.2d 335 (1992).

"When a verdict is challenged for insufficiency of evidence or as being contrary to
the
evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the
witnesses." Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).

Considering the evidence presented at trial, giving full play to the factfinder's duty to
assess the credibility of witnesses and weigh the evidence, we determine that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt.

Next, Hill complains of prejudicial comments made by the prosecutor during closing
argument. In State v. Cravatt, 267 Kan. 314, 979 P.2d 679 (1999), our Supreme
Court set out
the general rules relative to claims of prosecutorial misconduct in closing arguments as
follows:

"In determining that a prosecutor's improper remarks made in closing argument are
not so
gross and flagrant as to prejudice the jury against the accused and deny him or her a fair trial, the
reviewing court must be able to find that when viewed in light of the record as a whole, the error
had
little, if any, likelihood of changing the result of the trial. This is a harmless error analysis. The
court
must be able to declare beyond a reasonable doubt that the error was harmless. Each case must
be
scrutinized on its particular facts to determine whether prosecutorial misconduct is harmless error
or
plain error when viewed in the light of the trial record as a whole." 267 Kan. at 332.

Hill maintains that the prosecution made two statements to the jury during closing
arguments regarding matters that were not in evidence. The first of these complained-of
statements regarded the prosecution's assertion that a witness at the trial changed his story in
order to fit the account of the defendant. This statement, apparently, was predicated upon a
slight difference between an earlier statement recorded in a police report and the actual
testimony of the witness. That portion of the police report was revealed to the factfinder
during the course of questioning at trial. Hill complained a second statement was not
supported by the facts presented. The actual statement made was "Julie Miller lives in his
house." Miller, the ex-wife of the defendant, testified that at the time of trial, she lived in the
trailer the defendant used to live in.

As to the first statement, the prosecutor has the right to make fair comment on the
evidence. Obviously, the prosecutor's assessment of the facts presented does not have to be
favorable to the defendant. In the second statement, the prosecutor has a right to point out a
possible bias that a witness may have for testifying. Likewise, his assessment of the situation
does not need to be agreeable to the defendant. The prosecutor is entitled to considerable
latitude in arguing the case to a jury.

In the instant case, the remarks made were not so far from the evidence presented as to
be considered a gross and flagrant act capable of prejudicing the jury.

Hill further complains that the prosecutor improperly appealed to the personal fears
and sense of community safety with a statement regarding his own children and telling the
jury not to let the defendant "get away with this."

An examination of the record reveals that the statement regarding the children of the
prosecutor, as complained of by Hill, may be somewhat out of context. In any event it was
not so flagrant or gross as to show prosecutorial misconduct or any prejudicial effect upon
the jury. The statement regarding not letting the defendant "get away with this" is of no
more prejudicial effect than to simply ask the jury to find the defendant guilty. As a result,
we conclude that the evidence supports Hill's convictions beyond a reasonable doubt and
declare that the prosecutor's improper comments, if any, were harmless error.